presume a lay patron to be always capable of choosing a proper clerk in such respects, and therefore if he presents an insufficient one, it is not to be at his peril."

Where a sequestration has issued under the provisions of the act to prevent holding benefices in plurality, for disobedience to the bishop's monition or order; or if two such sequestrations shall have issued within the space of two years, and neither of them shall have been set aside upon appeal, such benefice shall thereupon become void, that is to say, the incumbent shall be deprived; and, according to the established law, such would have been the case where notice should have been given, and where the period of lapse would have commenced from the time of giving such notice; but it has been thought fit in this, as in so many other instances, to re-enact in substance the previously acknowledged law, or rather to make a distinction in the mode of giving notice in this and in other kinds of deprivation; for it is enacted that the bishop, on such benefice so becoming void, shall give notice in writing under his hand to such patron, which notice shall either be delivered to such patron, or left at his usual place of abode, or if such patron or place of abode shall be unknown, or shall be out of England, such notice shall be twice inserted in the London Gazette, and also twice in some newspaper printed and usually circulated in London, and in some other newspaper usually circulated in the neighbourhood of the place where such benefice is situated; and for the purposes of lapse, the avoidance of the benefice shall be reckoned from the day on which such notice shall have been delivered as aforesaid, or from the day on which six months shall have expired after the second publication of such notice in the London Gazette, as the case may be; and every such notice in the Gazette and newspapers shall state that the patron, or the place of abode of the patron, is unknown, or that he is said to be out of England, as the case may be, and that the benefice will lapse, at the furthest, after the expiration of one year from the second publication thereof as aforesaid; and upon any such avoidance, it shall not be lawful for the patron to appoint by donation, or present or nominate to such benefice so avoided, the person, by reason of whose non-residence the same was so avoided.c

By the same statute it is declared, that if any spiritual person shall trade or deal in any manner contrary to the

b 2 Inst. 632; 2 Roll. Ab. 364; 2 Burn's E. L.

Sect. 58. The particularity to be observed in the mode of giving this notice, seems to have provided much probable difficulty and litigation.

provisions of that act, and which provisions we have elsewhere noticed, he shall for his third offence be deprived ab officio et beneficio, in which case, although it is presumed the law was previously fully clear and sufficient, it is enacted that the bishop shall forthwith give notice thereof in writing under his hand to the patron of the preferment held by the person deprived, such notice to be given in the manner in which notice is required to be given to the patron of a benefice continuing under sequestration for one whole year, and thereby becoming void; and any such cathedral preferment or benefice shall lapse, at such period after the said notice, as any benefice continuing under sequestration for one whole year would lapse under the provisions of that act.a

Where deprivation is the penalty annexed by statute Where clergyfor neglect or default of reading in in the church after in- man is deprived for not reading duction, according to such forms as have been already in, notice must mentioned, it is expressly declared by the statute, that no be given to lapse can accrue but after six months after notice of such patron. deprivation, given by the ordinary to the patron.

ordinary.

In all cases where lapse would not occur without notice, Lapse in case of if the ordinary die before it is given, no lapse can occur to death of the his successor before notice by him; and in case of death after lapse, the king, by his prerogative, shall have the presentment, and not the executors of the ordinary.f

In all cases where the patron is to have notice, it ought to be given to himself, if he be resident in the county; if not, it should be affixed to the church door, so that public intimation may be given. But it appears to be among the doubtful questions which may arise under the provisions of the statute 1 & 2 Vict. c. 106, s. 58, whether the former mode of giving notice is superseded.

CHAPTER II.

OF THINGS INCIDENT TO THE POSSESSION OF A

BENEFICE.

Residence under the 1 & 2 Vict. c. 106.

Every incumbent to reside on his benefice, and in the

house of resi. dence.

SECTION 1.

Of Residence.

WHEN a clergyman has, in the manner before mentioned, obtained full possession of his benefice, and thereby become a complete incumbent, he is subject in consequence to two particular restrictions. He is generally compelled to reside upon that benefice, and while holding it, he generally is incapable of taking and holding any other. These two general restrictions, and the particular cases of exception from them, are therefore to be here considered.

In neither of these matters does it appear useful to enter into the state of the law as it may formerly have existed on these subjects. Various statutes have at dif ferent times been passed, and the law, in both instances, has undergone considerable variation, but it is now entirely dependent on, and appears to have been satisfactorily settled by, the recent statute of the 1 & 2 Vict. c. 106.

And first, as regards residence, it is the principle of that act, that beneficed clergyman should be compelled to every reside upon his benefice, or if he have two benefices, upon one of them.

Every spiritual person holding any benefice shall keep residence on his benefice, and in the house of residence (if any) belonging thereto; and if any such person shall, without any such license or exemption as is in this act allowed for that purpose, or unless he shall be resident at some other benefice of which he may be possessed, absent himself from such benefice or from the house of residence, if any, for any period exceeding the space of three months annual value of together, or to be accounted at several times in any one year, he shall, when such absence shall exceed three months, and not exceed six months, forfeit one-third part of the annual value of the benefice from which he shall so absent himself; and when such absence shall exceed six

Forfeiture of part of the

living propor tioned to the

length of nonresidence.

months, and not exceed eight months, one half part of such annual value; and when such absence shall exceed eight months, two-third parts of such annual value; and when such absence shall have been for the whole of the year, three-fourth parts of such annual value."

certain distance

house.

Any bishop, upon application in writing by any spiritual person holding any benefice within his diocese, whereon there shall be no house or no fit house of residence, by license under his hand and seal, to be registered in the License to reregistry of the diocese, which the registrar is by the act side within a required to do, may permit such person to reside in some of the church, fit and convenient house, although not belonging to such where there is benefice; such house to be particularly described and no fit parsonage specified in such license, and for a certain time to be therein also specified, not exceeding the period by the act limited, and from time to time, as such bishop may think fit, he may renew such license, and every such house shall be a legal house of residence for such specified time to all intents and purposes; provided that no such license shall be granted to such spiritual person to reside in any house, unless it be within three miles of the church or chapel of such benefice, nor in case such church or chapel be in any city or market, or borough town, unless such house be within two miles of such church or chapel.b

of residence.

In cases where houses of residence have been purchased, Houses built or built or procured, or may hereafter be purchased, built or procured by procured, by the governors of Queen Anne's Bounty, and Bounty when to which, though not situated in the parish, are yet so near be deemed the thereto as to be sufficiently convenient and suitable for the regular houses residence of the officiating minister, such houses having been previously approved by the bishop of the diocese, by writing under his hand and seal, duly registered in the registry of the diocese, shall be deemed the houses of residence belonging to such benefices, to all intents and purposes whatsoever.

Such being the general and simple rule laid down re- Exceptions from specting residence, the statute proceeds to determine the the above rules. cases of exemption and exceptions from it as follows:

No spiritual person, being head ruler of any college or Heads of colhall within either of the universities of Oxford or Cam- leges, &c. bridge, or being warden of the university of Durham, or being head master of Eton, Winchester or Westminster School, or principal or any professor of the East India College, having been appointed such principal or professor before the time of the passing of the act, and not having respectively more than one benefice with cure of souls,

1 & 2 Vict. c. 106, s. 32.

b Sect. 33.

© Sect. 34.

L L

Certain other

parties exempted from penalties for non-resi

dence while actually engaged

in their several duties else. where.

shall be liable to any of the penalties or forfeitures in this act contained for or on account of non-residence on any benefice.d

No spiritual person, being dean of any cathedral or collegiate church, during such time as he shall reside upon his deanery, and no spiritual person, having or holding any professorship, or any public readership in either of the said universities, while actually resident within the precincts of the university, and reading lectures therein (provided that a certificate under the hand of the vice-chancellor or warden of the university, stating the fact of such residence, and of the due performance of such duties, shall in every such case be transmitted to the bishop of the diocese wherein the benefice held by such spiritual person is situate, within six weeks after the 31st day of December in each year), and no spiritual person, serving as chaplain of the queen or king, or of the queen dowager, or of any of the queen's or king's children, brethren or sisters, during so long as he shall actually attend in the discharge of his duty as such chaplain in the household to which he shall belong; and no chaplain of any archbishop or bishop, whilst actually attending in the discharge of his duty as such chaplain; and no spiritual person actually serving as chaplain of the House of Commons, or as clerk of the queen's or king's closet, or as a deputy clerk thereof, while any such person shall be actually attending and performing the functions of his office; and no spiritual person serving as chancellor or vicar-general, or commissary of any diocese, whilst exercising the duties of his office; or as archdeacon, while upon his visitation, or otherwise engaged in the exercise of his archidiaconal functions; or as dean or subdean, or priest or reader, in any of the queen's or king's royal chapels at St. James's or Whitehall, or as reader in the queen's or king's private chapels at Windsor or elsewhere, or as preacher in any of the inns of court, or at the rolls, whilst actually performing the duty of any such office respectively; and no spiritual person, being provost of Eton College, or warden of Winchester College, or master of the Charter House, or principal of St. David's College, or principal of King's College, London, during the time for which he may be required to reside, and shall actually reside therein respectively, shall be liable to any of the penalties or forfeitures in this act contained, for or on account of non-residence on any benefice for the time in any year, during which he shall be so as aforesaid resident, engaged or performing duties, as the case may be; but

d Sect. 37.